Title: Memorandum Re: Rights to Consumptive Use of Water
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Title: Memorandum Re: Rights to Consumptive Use of Water
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Memorandum Re: Rights to Consumptive Use of Water (JDV Box 86)
General Note: Box 22, Folder 6 ( Notes From Cases on Water Rights - 1975 ), Item 2
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DRAFT II
JDV:cs
3/21/75
/


MEMORANDUM

RE: Rights to Consumptive Use of Water


I. INTRODUCTION

For many years people have generally believed that Florida

is blessed with an unlimited supply of water. They seem to believe

that "underground rivers" or some other unknown and unexplainable

source would provide the citizens of the State of Florida with

an over-abundant supply of water. As demands for water have

increased, certain users are finding themselves competing with

other water users. We are suddenly recognizing that water is a

limited resource and that the demand is approaching or exceeding

the supply in certain areas of the state. As we implement and

devise various regulatory efforts to (1) achieve maximum and

efficient utilization of our water resources, (2) meet he

increasing demands for water, (3) protect and conserve our
our
water resources, (4) maintain the high quality of life, and (5)

protect our natural resources, it is imperative that we be ever

mindful that such regulatory devices will require the regulation

of private property and that these regulations will bring charges

by the private landowner that his property is being taken without

compensation.

The purpose of this memorandum is to describe the nature

of the property rights to the consumptive use of water that a

landowner has. For the purposes of this memorandum, we will

describe the nature of the rights with respect to surface water -

that is, water which flows or is contained on the surface and

ground water that is, water which flows or is contained in

the ground. The nature of the rights we are describing herein

are the rights to the water that occur naturally. We are not

addressing the rights one may have with respect to water that

is imported from another area or watershed by some artificial

means.



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II. NATURE OF PROPERTY RIGHTS IN WATER

Water rights are classified, protected and administered

under two principle doctrines in the United States, the reasonable

use doctrine, which is also referred to as the riparian rights

doctrine, and the prior appropriation doctrine. 4Relese, p. 1-8.

Under both doctrines, water rights are considered as "usufructary",

a right of use and not an interest in the corpus of the water supply.

It is the use of water and not the water itself which is the

subject of the property right. Water rights are generally con-

sidered to be real property. Jarvis, 479 P.2d 169, 172-173. Most

jurisdictions treat water rights as real property for the purposes

of determining title in a quiet-title action, Calif. Water Service

Co., 37 Calif. Rptr. 1, 4; Higday v. Nickolaus, 469 SW 2d 859,

(1971), a mortgage-recording requirement, satisfying the statutes

of frauds, descent and inheritance and taxation. Clark, Water &
Vol. I,
Water Rights, 53, p. 345. Likewise, a water right, like other

property interests, may be sold or otherwise transferred such as

by leasing the right to another party or by descent through the

provisions of a will. Id., at 355. Florida, like most eastern

states, recognizes riparian rights as property. Maloney, at 31.

One important principle under the reasonable use doctrine is

that a riparian right to water exists whether or not the use is

being exercised. Consequently, a riparian can initiate a

use any time and insist that his rights be respected or that a

share be allotted to him. For the most part, the riparian rights

are governed by the common law. The major feature of the reason-

able use doctrine is that it affords similar rights to each

riparian owner or to the owners of land overlying the same source
.avmo-t idewica\
of water supply. The rule of correlative rights is very eimiear

to the reasonable use rule and has been followed in California.

Under the correlative rights rule the water users are afforded

equal rights to the water as compared to the similar rights

afforded to the users under the reasonable use doctrine. While

Florida courts have traditionally followed the reasonable use


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doctrine, there are suggestions that the courts may apply the

rule of correlative rights. See Cason v. Fla. Power Company,

76 So. 535, 536.


A. GROUND WATER RIGHTS

(1) REASONABLE USE DOCTRINE

Ground water falls into two legal classifications,

either underground streams or percolating waters. Depending upon

the legal classification of the ground water, the ground water is

subject to two separate and distinct bodies of legal rules. It

should be noted, however, that these legal classifications are

artificial. Today hydrologists generally agree that ground water

is but one phase of the hydrologic cycle and that ground water is

in constant movement. Most importantly, hydrogists know that

all water is interrelated and interdependent and should not be

dealt with as though it had separate and distinct classes.

Nonetheless, we continue to use different legal principles for

each classification. The Florida Supreme Court has also followed

the traditional classifications of ground waters, either underground

streams or percolating waters. See Tampa Waterworks v. Cline,

20 So. 780 (1896). Accordingly, the Florida Supreme Court has

recognized that an underground stream must have the same

characteristics as a surface stream, that is, it must have a

permanent, distinct and well-defined channel. Id., 782. The

Florida Supreme Court went on to recognize that the rules of law

which govern the use of surface stream is applicable to underground

streams and that ground water is presumed to be percolating unless

it is affirmatively shown that the water is flowing in an under-

ground stream. Id., 784. Percolating waters include all waters

which pass through the ground beneath the surface of the earth

without a definite channel and not shown to be supplied by a

definite flowing stream. They are waters which ooze, seep,

filter and otherwise circulate through the interstices of the

subsurface strata without definable channel, or in a course

that is not discoverable from surface indications without


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excavations for that purpose. 93 C.J.S. Water S86.

The English Common Law with respect to rights in

percolating waters was not developed until 1843 in the case

of Acton v. Blundell, 12 M & W 324. Under this doctrine,

percolating waters constitute part and parcel of the land in which

they are found and belong absolutely to the owner of such land

who may without liability withdraw any quantity of water for any

purpose even though the result is to drain all water from beneath

the adjoining lands. At an early date, the American courts

expressed dissatisfaction with the absolute ownership rule and

began applying what has come to be known as the "reasonable use

rule". Generally, the rule of reasonable use is an expression of

the maxim that each landowner is restricted to a reasonable

exercise of his own rights and a reasonable use of his own

property, in view of the similar rights of others. III Farnham,

Water and Water Rights, pp. 2718, 2719.

In 1956, the Florida Supreme Court followed the reason-

able use rule in a case involving percolating ground water. See

Koch v. Wick, 87 So. 2d 47 (1956). In this case, the Florida

Supreme Court rejected the absolute ownership rule and expressed

its version of the reasonable use rule as follows:

"The opinions expressed in these cases
harmonize the pronouncements in Labruzzo
v. Atlantic Dredging Const. Co., 54 So.
2d 673, 29 A.L.R. 1346, that the American
courts have receded from the old common
law rule that an owner had an unrestricted
right to draw percolating water from this
land and to adopt the rule that the right
is bounded by reasonableness and beneficial
use of land." (at 48)

Under the riparian reasonable use rule, each riparian

has the right to make use of the water subject to the equal

rights of the other riparian owners. Consequently, no riparian

owner can withdraw all of the water since this would be

unreasonable because it would interfere with the equal rights of

the other riparians. Whereas, under a "pure" reasonable use

rule as applied to percolating water, an overlying landowner

can withdraw a quantity of water that damages a neighboring


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landowner so long as the water is being used for a beneficial

purpose on the overlying land. Maloney p. 157. Maloney, -upra,

indicator that A number of eastern states have abandoned this

"pure" reasonable use rule for percolating water and have adopted

a reasonable use rule as to percolating waters that is similar

to the reasonable use rule governing riparian rights in surface

waters. a~ow

To date, the Florida Supreme Court has followed the trend

set by other eastern jurisdictions in following the reasonable

use rule similar to that governing riparian rights. See, Cason v.

Fla. Power Co., 76 So. 535 (1917); Koch v. Wick, 87 So. 2d 47 (1956);

Labruzzo v. Atlantic Dredging & Construction Co., 54 So. 2d 673

(1951).

Based on the Florida cases to date and the common law,

ground water rights can be characterized as follows:

1. Owners of land overlying a ground water basin

have the right to withdraw water and that right

is bounded by reasonableness and beneficial

use of such waters. Labruzzo 675, Koch 48.

2. The rights to the water are property rights and

the the rights of one landowner with respect to

another are correlative. Labruzzo at 676, Cason

at 536.

3. The rights of each landowner is restricted to a

reasonable use of his property as it affects the

waters underlying the adjacent properties.

Labruzzo at 676.

4. The right of each landowner is equal and correlative

to the right of all other owners similarly situated,

and the right exists whether or not it is presently

being exercised. City of Pasadena, 207 P.2d 17 at 45.

Natural Resource Lawyer Vol. VII, No. 3 (1974)

Ward H. Fischer 521, 525.

Consider the case of two adjacent landowners who are


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withdrawing water from use of their overlying property and there

is insufficient water to fully spprt the requirements of both.

Under this set of circumstances, in a jurisdiction such as Florida,

one or both of the landowners would have to reduce their with-

drawals depending upon the amount of water available. Based on

the quantity of water available, a court would have to equitably

apportion or distribute that quantity of water to the landowners

after considering the purposes and uses to which these landowners

would be placing the water. In other words, in cases of this

nature, the ultimate decision will depend on the particular facts

of the individual case. It should be recognized, however, that

as additional landowners want to initiate new water uses that are

reasonable uses, the landowners will once again face the problem

of equitably distributing the water.

If in this example, it could be shown that one of the

landowners was wasting the water or making an unreasonable use

of the water, the other landowner could seek the appropriate

judicial relief to eliminate or prohibit the wasteful or unreason-

able use.

In all of the cases above, it should also be remembered

that priority of use establishes no priority of right, i.e., one

cannot claim superior right merely because he used the water first.

The problem becomes somewhat more complex when a landowner

begins transporting the water beyond his overlying land. In 1956

(Koch v. Wick, 87 So. 2d 47) when the Florida Supreme Court adopted

the reasonable use rule, the court clearly stated that the right

to withdraw water "is bounded by reasonableness and beneficial

use of the land". In this case, the Supreme Court reinstated a

complaint to allow the affected landowner the opportunity to prove

his allegations that the large withdrawals of water were unreason-

able and would result in irreparable injury to his property.

Apparently, the plaintiff was unable to prove his allegations

before the circuit court where his complaint was reinstated.

In this same case, the Supreme Court did recognize that a


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governmental body "is not in a favorable position simply because

the water drawn is to furnish the public". Id., at 48.

If the Florida courts were to follow the strict common

law rule, the overlying landowner would be confined to using the

water for reasonable and beneficial uses on the overlying land

just as the riparian owners are confined to use on the riparian

land. In 1927 the Florida Supreme Court (Tilden v. Smith, 113 So.

708) elected to modify its application of this rule by finding

that any person may divert the flood or excess waters to lands

not riparian and even beyond the watershed of the stream. The

court reasoned that these types of diversions should be allowable

since the water is of "no substantial benefit to the riparian or

his land". Assuming that the Florida courts would continue to

apply the same reasonable use rule to ground water as has been

applied to surface water, it is reasonable to suggest that the

courts would permit the diversion of excess ground waters to non-

overlying lands, as the Florida Supreme Court did in Koch V. Wick.

Recognizing that several changes in the law could be made that

would enable the water resources of Florida to be "put to the

most beneficial use of which they are reasonably capable, and

so that waste and unreasonable use may be minimized", the

Florida Water Resources Study Commission in 1957 recommended

to the Governor and the Legislature certain legislation to

accomplish these objectives. Included in the legislative

packet was a proposal to legally authorize the diversion of all

water in excess of reasonable use beyond riparian or overlying

land. Section 373.141, F.S. (1971). This provision clearly

implies that the uses on overlying land have a priority and

that the right to divert only applies as long as excess water is

available.

Outside of the little insight provided by the two

Florida cases and the one statutory provision cited above, it is

helpful to look to other jurisdictions to establish an opinion

on modern decisions concerning the transportation of water from

the overlying lands.


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Clearly, the trend of modern decisions has been towards

the adoption of the reasonable use doctrine. Many states, unlike

Florida, have had to resolve the conflict where there is competi-

tion for water between a governmental unit, which wants to transport

ground water beyond the overlying lands and the landowners adjacent

to the governmental well field. As the public water systems seek

new sources of water to meet its ever-increasing water needs, this

conflict is destined to occur and reoccur. See, Midway Irrigation

Co. v. Snake Creek Mining and Tunnel Co., 271 F. 157 (CCA 8th,

1921), aff'd., 260 U.S. 596, 43 S.Ct. 215; Katz v. Walkinshaw,

141 Cal. 116, 70 P. 663 (1902), on rehearing, 74 P. 766 (1903);

Cohen v. La Canada Land and Water Co., 151 Cal. 680, 91 P. 584

(1907); Burr v. Maclay Rancho Water Co., 154 Cal. 428, 98 P. 260

(1908); City of San Bernadino v. City of Riverside, 186 Cal. 7,

198 P. 784 (1921); Koch v. Wick, 87 So. 2d 47 (1956); Jarvis v.

State Land Department, 479 P. 2d 169 (1969); Higday v. Nickolaus,

469 SW 2d 859 (1971); cf. Willis v. City of Perry, 92 Iowa 297,

60 N.W. 727 (1894); c.f. Barclay v. Abraham, 121 Iowa 619, 96

N.W. 1080 (1903); Schenk v. City of Ann Arbor, 196 Mich. 75, 163

N.W. 109 (1917); Bernand v. City of St. Louis, 220 Mich. 159,

189 NW 891 (1922); Stillwater Water Co. v. Farmer, 89 Minn. 58,

93 NW 907 (1903), and 99 Minn. 119, 108 NW 824 (1906); Erickson

v. Crookston Waterworks, Power and Light Co., 100 Minn. 481, 111

N.W. 391 (1907); Meeker v. City of East Orange, 77 N.J.L. 623,

74 A. 379 (1909); Crane v. Borough of Essex Fells, 67 N.J. Super.

83, 169 A.2d 845 (1961), aff'd. 36 N.J. 544, 178 A.2d 196 (1962);

Smith v. City of Brooklyn, 18 App. Div. 340, 46 N.Y.S. 141; 54

NE 787 (1897); Westphal v. City of New York, 34 Misc. 684, 70 N.Y.S.

1021 (1901), aff'd. 75 App. Div. 252, 78 N.Y.S. 56, aff'd. 177

N.Y. 140, 69 N.E. 369 (1901), rearg. den. 177 N.Y. 570, 69 N.E.

1133; Forbell v. City of New York, 164 N.Y. 522, 58 N.E. 644

(1900); Rouse v. City of Kinston, 188 N.C. 1, 23 S.E. 482 (1924);

Canada v. City of Shawnee, 179 Okla. 53, 64 P.2d 694 (1937);


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Horne v. Utah Oil Refining Co., 59 Utah 279, 202 P. 815 (1921);

Rathrauff v. Sinking Spring Water Co., 14 A.2d 87 (1940);

Township of Hatfield v. Lansdale Municipal Authority, 168 A.2d

333 (1961).

These decisions agree that under the reasonable use

doctrine an overlying landowner, including a municipality, may

not withdraw water and transport it from the overlying land for

sale or use away from the land from whence it was withdrawn, if

the withdrawals impair the supply of an adjoining landowner to

his injury. In this instance, the use is unreasonable because it

is non-beneficial and is not for a "lawful purpose within the

general rule concerning percolating waters". Higday v. Nickolaus,

469 SW 2d 859, 866 (1971). In Higday, supra, the court further

recognized that the right to make a reasonable use of the

percolating waters underlying one's land is a property right and

is usufructary in nature.

Additionally, the courts have acknowledged that the

principal difficulty in applying the rule of reasonable use is

in determining what constitutes a reasonable use. Many factors,

such as the persons involved, their relative positions, the

quantity of water available, the nature of the uses, the depend-

ability of the supply, the climatic conditions, and the comparative

value of their uses, are some of the factors that may be considered

when one determines what is a reasonable use. Higday at 866.

Stated generally, the reasonable use doctrine provides

that "each landowner is restricted to a reasonable exercise of

his own rights and a reasonable use of his own property, in view

of the similar rights of others". Canada v. City of Shawnee,

64 P.2d 694 (1936). A municipal corporation or a county water

system seeking water for its residents or customers is subject

to the same rules of law concerning rights in grou d water as is

a private individual. Canada at 695. The city or county is a

private owner of land and the furnishing of water to its


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inhabitants is its private business. "While it is imperative

that the people of the city have water, it is not imperative

that they secure it at the expense of those owning" lands

adjacent to municipal well fields. Schenk v. City of Ann Arbor,

163 NW 109 (1917).

As pointed out earlier, the correlative rights doctrine

is almost identical to the reasonable use doctrine. It is not

uncommon to see courts in jurisdictions that have adopted the

reasonable use doctrine to discuss correlative rights as though

it were the same as the rule of reasonable use. See, Labruzzo

at 675; Cason at 536; Meeker at 380. Again, under the correlative

rights rule the water users are afforded equal rights to the water

as compared to the similar rights afforded to the users under the

reasonable use doctrine.

The California Supreme Court in City of Pasadena v. City

of Alhambra, 207 P.2d 17 (1949), in an action to determine the

ground water rights within a basin and to enjoin an alleged

annual overdraft in order to prevent eventual depletion of the

supply, said:

"Generally speaking, an overlying right,
analogous to that of a riparian owner in
a surface stream, is the right of the owner
of the land to take water from the ground
underneath for use on his land within the
basin or watershed; the right is based on
ownership of the land and is appurtenant
thereto....it is now clear that an overlying
owner or any other person having a legal
right to surface or ground water may take
only such amount as he reasonably needs for
beneficial purposes....In California surplus
water may rightfully be appropriated on
privately owned land for non overlying uses,
such as devotion to a public use or exporta-
tion beyond the basin or watershed....

...Proper overlying use, however, is
paramount, and the right of an appropriator
(the California courts use this term to refer
to any taking of water for other than riparian
or overlying uses), being limited to the amount
of surplus, must yield to that of the overlying
owner in the event of shortage, ... As between
overlying owners, the rights, like those of
riparians, are correlative, and are referred
to as belonging to all in common; each may use
only his reasonable share where water is
insufficient to meet the needs of all."


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See also California Water Serv. Co. v. Edward Sidebotham and

Sons, Inc., 37 Cal. Rptr. 1 (1964).

The position taken by the California Supreme Court under

the correlative rights doctrine is harmonious with the reasonable

use doctrine. The distinction between the correlative rights

doctrine and the reasonable use doctrine is that when the supply

is inadequate to meet the reasonable beneficial needs of the

overlying owners, the correlative rights doctrine required a

sharing of withdrawals among landowners overlying a common basin

based upon his surface ownership. With the knowledge we now have

of our water resources, under the correlative rights doctrine

an overlying landowner, who is putting the water to reasonable

beneficial uses, has a very close estimate of the quantity of

water he will have available when the water resources are fully

developed. This certainty is lacking under the reasonable use

doctrine.

Based upon the Florida cases, the trend of authority

in other "reasonable use" jurisdictions and the California cases,

the water rights of an overlying owner, who transports the water

for use on distant lands, can be described as follows:

1. The overlying owner has a qualified right to

use the water for reasonable and beneficial

purposes on non-overlying lands. Koch at 48;

Labruzzo at 675.

2. The withdrawals for non-overlying uses must

not interfere with the reasonable uses of the

overlying owners on the land from which the water

is withdrawn. Koch at 48; Higday at 866; Schenk

at 109; Jarvis at 171; Meeker at 380.

3. A property owner may not transport water off his

land if it results in damage or injury to another

landowner's water supply. Koch at 48; Higday at

866, Rathrauff at 90; City of Pasadena at 28;


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Jarvis at 17; Meeker at 382.

4. When there is not sufficient water to meet the

reasonable uses of the overlying owners, those

owners who are transporting water off the overlying

lands must recognize the prior right of the

overlying owners, since such transportation is not

a "lawful purpose". It is "unlawful" since reason-

ableness is limited to purposes incident to the

beneficial enjoyment of the land from which the

water is withdrawn. Higday at 866; City of Pasadena

at 28, Rathrauff at 90; Township of Hatfield at 333.

5. The reasonable uses on overlying lands are paramount

and the rights of those who transport for non-overlying

purposes is limited to the amount of the surplus or

excess. City of Pasadena at 28; Jarvis at 172.


(2) REASONABLE BENEFICIAL USE

With the passage of the Florida Water Resources Act of

1972 (Chapter 373, Florida Statutes), the legislature provided

the authority for the Department of Natural Resources to set up

a program for regulating the consumptive use of water. Section

373.219, Florida Statutes. The Act requires that in order to

obtain a consumptive use permit, an applicant must establish that

his use of the water (1) is a reasonable-beneficial use, (2) will

not interfere with any presently existing legal use of water and

(3) is consistent with the public interest. Section 373.223, F.S.

"Reasonable-beneficial use" is defined as "the use of water in

such quantity as is necessary for economic and efficient utilization,

for a purpose and in a manner which is both reasonable and con-

sistent with the public interest". As explained in the commentary

of the Model Water Code, which is the foundation for the Florida

Water Resources Act of 1972, "the reasonable-beneficial use"

standard ... is an attempt to combine the best features of the

reasonable use and beneficial use rules. Maloney, Model Water


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Code at 173.

The net result of adopting the "reasonable-beneficial

use" standard merely places the beneficial use limitation on

the present "reasonable use" doctrine. We have not replaced the

reasonable use rule, we have made an addition or limitation to

the doctrine. In spite of the inclusion of the word "beneficial",

the statutory definition is basically a restatement of the present

common law test for reasonable use.

Practically, in the cases where the demands for water

exceed the available supply, the results obtained under the

"reasonable use doctrine" will be the same as those obtained

under the "reasonable-beneficial use standard".

The adoption of the "reasonable-beneficial use" standard

has not moved Florida into the position of adhering to the "prior

appropriation doctrine". Throughout the Commentary of the Model

Water Code the drafters carefully pointed out their refusal to

adopt such a system. See Maloney, Model Water Code 81 and

158-159. Likewise, the 1957 Florida Water Resources Study

Commission also rejected the "prior appropriation" doctrine as a

means for managing our water resources.


III. SURFACE WATERS

In Florida ground water accounts for approximately

90% of the fresh water we use. Surface water has not been utilized

to a great extent because of the lack of good reservoir sites in

our generally flat terrain. Shallow water bodies are also subject

to enormous evaporation losses.

The problems associated with allocating surface water

are very different from the ground water problems. For example,

some rivers have constant flow, others have flows that vary from

nothing to several hundred million gallons per day.

For all of the above reasons, we have chosen not to
OY +O .urciest
go into any further details about surface water4afd possible

solutions to its regulation.


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IV. PROBLEM AREAS

(1) The Taking Issue

Whether regulation takes place under the reasonable use

doctrine or the reasonable-beneficial use standard, the regulatory

device will be attacked as constituting a taking of private

property without just compensation. As long as the supply is

adequate to meet the needs of all water users without damage to

property, persons or the resource, there is little reason for

complex regulation. However, when the supply is inadequate, it

is imperative that our regulatory device be capable of allocating

the water in a manner that is fair, equitable and consistent with

the law. Included in the allocation formula must be a recognition

of the property rights of the interested parties. Because the

correlative rights doctrine is almost identical to the reasonable

use doctrine, utilizes a reasonable beneficial use standard and

has a more definite method of allocation, it is our recommendation

that the State adopt the correlative rights doctrine in the imple-

mentation of its various regulatory programs and in the development

of the State Water Use Plan. Because the correlative rights

doctrine is so similar to the reasonable use doctrine, it is unlikely

that it could be successfully challenged as a taking of property

without just compensation.

If the State was to adopt such a policy, each landowner

would know the minimum amount of water that he can reasonably

expect to always have available for reasonable-beneficial uses.

Presently, a landowner has no idea of the amount of water that

he has available for reasonable-beneficial purposes. As pointed

out earlier, under the correlative rights doctrine, the distri-

bution of water for reasonable-beneficial purposes is made in

proportion to the ownership of the overlying land. Please

recall, however, that the allocation is only necessary if the

water needs exceed the available water supply.

In keeping with the foregoing, we would recommend


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the adoption of the following policy statement:

The landowner's ability to withdraw ground water for use

on the overlying land is a basic element of the ownership and

is a right inherent therewith. It is a correlative right,

co-extensive and co-equal with that of the adjoining landowners,

and is a legally protectable right, whether or not it is presently

being exercised.

While the need exists to protect this property right, there

Ue OutFw is also a need to protect the resource itself. The challenge is

FmIq i to accomplish both objectives. The implementation of a regula-

tory program and the adoption of the State Water Use Plan incor-

porating the "correlative rights" doctrine is reasonable and

|beneficial use achieves these objectives and is consistent with the

Constitution, case law, the statutory standard of reasonable bene-

ficial use and the trend of modern decisions in other common law

jurisdictions.

It is important to recognize that, if properly implemented,

this doctrine will eliminate the problem of the taking issue,

and makes a moot question of compensatory damages for this

property right. Finally, this standard is one by which water

may be allocated most equitably and beneficially among competing

water users, private and public, while at the same time conserving

the resource.
MIteMT A ^5E LAST Ph6C
(2) State Water Policy

At the present time there are five water management

districts in the State. Two of these districts have implemented

regulatory programs for the consumptive use of water pursuant
11s & dlcs e'c
to Part II, Chapter 373, Florida Statutes. The two esi-ting

programs utilize different permitting procedures and forms and,

although both are in the early states of implementation, it

appears that different concepts of allocation are being utilized.

Consequently, depending on the district in which you reside,

your water rights may be determined by the common law rule of

reasonable use or a regulatory scheme based on the reasonable-


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beneficial use standard. Assuming you could present the same

facts to each of the districtsAexercising a regulatory function,

it is possible and probable that each district would make a

different determination. Should this occur and an administrative

appeal be taken to the Governor and Cabinet, functioning as the

head of the Department of Natural Resources, it is unrealistic

to expect affirmation of both actions.

This example points out the need and necessity for a

well-defined state water policy. While each water management

district may have situations that are unique because of particular

hydrologic or geographic factors and wi4 need the flexibility

to handle their unique problems, most of the circumstances

will be common through the State, and, therefore, we must have

some degree of uniformity. Since each district is implementing

the same statutory provisions through a delegation of authority

from the Department of Natural Resources, it is inconceivable

to imagine that the Legislature intended to establish five

different systems and methods for establishing water rights in

Florida.

If the Department of Natural Resources was to establish

model rules and regulations with which the water management

districts must substantially comply, but also provide for variances

and exceptions because of unique or unusual circumstances, the

State will have taken the first step towards the implementation

of a uniform state water policy.

(3) State Water Use Plan and the Implementation
of Consumptive Use Regulations

Efforts are now underway for the preparation of the

State Water Use Plan pursuant to Section 373.036, Florida Statutes.

In the absence of a well-defined state water policy, it is difficult

to envision how the State Water Use Plan can be developed. Addi-

tionally, parts of the State Water Use Plan are being developed

by some of the water management districts, consequently, the

possibility and probability of inconsistent objectives and


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methodology is present.

As noted earlier, two of the water management districts

have implemented consumptive use permitting programs. Assume

that a district issues a consumptive use permit while the district

or State is in the process of developing the State Water Use Plan.

What happens if the approved permit is inconsistent with the State

Water Use Plan? The point is, can it be determined that a use will

be reasonable-beneficial in the absence of a clear state water

policy and a State Water Use Plan?

Another potential problem in the implementation of a

consumptive use permitting program is the possibility of utilizing

a prior appropriation system. We have already pointed out that

the prior appropriation has been considered and rejected at least

twice. If a prior appropriation system is implemented, there are

numerous problems. For example, if implemented, the day will come

when a district will have allocated all of the water on the basis

of first in time, and at that point, all future applicants will

have to be denied because there is no water available. Where this

occurs, the applicant will allege that his property has been taken

without just compensation. If the districts implement this type

of regulatory program, it will only be a question of time before

a water shortage occurs and the district will have to declare a

water shortage as provided in Section 373.246, Florida Statutes.

It doesn't seem realistic for a district to implement a system

that will lead to a shortage or disaster. These problems can be

avoided very easily by the adoption and implementation of the

recommended policy statement of paragraph (1) above.

(4) Coordination and/or Consolidation of Land
Use Regulation and Water Use Regulation

On the state, regional and local levels of government,

we invariably have one body engaged in land use regulation and

another in water use regulation. For example, we have local

government making land use decisions daily, while at the same

time, we have the water management districts regulating water use.


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On the state level, the Division of State Planning is preparing

a State Land Use Plan and the Department of Natural Resources

is preparing a State Water Use Plan. Land use cannot be separated

from water use. What can someone do with a piece of property

without water? What you do with a piece of property affects the

water resources. What you do with the water resources affects

the land. Land use activities must go hand in hand with water

use. Our regulatory and planning activities for land use and

water use on all levels should be placed in one agency or unit.

This is the best way to insure a fully coordinated planning

and regulatory process. Too often, we rezone a piece of property

for residential or industrial purposes assuming that we will have

an adequate water supply. In recent years, the citizens have

learned of how the Green Swamp is the head waters for the Peace

River, Hillsborough River, Oklawaha River, Withlacoochee River

and Reedy Creek as well as a major recharge area for the Floridan

aquifer. Recognizing the significance of the Green Swamp to the

water resources of this State is one of the reasons why it was

designated as an "area of critical state concern". The Green

Swamp is an excellent example of why land use and water use

must be regulated and planned by a single entity.

(5) Regulating, Protecting and Conserving Our Resources

As government continues to provide additional services

to the citizens, in our efforts to economize and be efficient

we must be careful with the duties and responsibilities we vest

in our agencies. For flood control, drainage and water purposes,

we have channelized and straightened rivers, stabilized lake

levels, flooded wetlands and constructed canals to the Gulf

and Atlantic Ocean. Recently, we have discovered that some of
vie ca hjpotueit-"c
these projects were mistakes and/that if these projects were
Y'VOv^ b4 Lev) Osu 4 -t-A
under consideration today, we-would never have undertaken

-them. The adverse effects of many of these projects will be

felt for years to come and, if correctible, they will require


- 18 -














vast expenditures of public funds. Many of the agencies that

have created the problem and damaged the resource are now respon-

sible for protecting and regulating the resource

As we grant power to agencies we must a ways bear in

mind the other functions which the agencies exer ise. Where
&(u61 Goles
roles are compatible, one agency should handle -em. Where the

roles are incompatible, two agencies should handle them. With

two agencies, each seeking to perform its own function, a

healthy conflict should exist and in the end the public interest

should be best served. For example, an agency w ich is vested

with the authority of regulating our water resou ces should not

exercise a water supply function, these roles ars incompatible.

Whereas, an agency exercising flood control functions could also

be vested with water supply functions.

In sum, those agencies charged with the responsibility

of protecting, regulating and conserving our re sources, should

not also be charged with the responsibility of developing the

same resource it regulates.

(6) Meeting the Water Demands of the Coastal Resident

Because of salt water intrusion most of the communities

along the Florida coast have established well fields inland.

The fresh water is then transported from the well fields to the

coastal areas for use. You will recall in our earlier discussions

that reasonableness is measured in terms of use on the overlying

land. Whenever a conflict arises and one of the users is trans-

porting the water beyond the overlying land, the transported

use is unreasonable. Obviously, if this stand d remains, the

time will come when the water use on the proper y adjacent to

the well fields will increase and the coastal c mmunities

will be forced to abandon their well fields.

The most practical solution to this problem is to allow

the water system to step into the position held by the person

who previously owned the property. In spite of the fact that

the water system is transporting the water beyond the overlying


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~E~IIYYi*YIYCC I _..I















land, the water system will have a supply of water and will not

be forced to ultimately abandon the facility. The solution has

been utilized in other areas. It simply puts the water system on

equal footing with the other water users who are placing the water

to reasonable-beneficial uses on the overlying land.


V. SUMMARY

The right to the use of water is a property right.

While there exists the need to protect this property right, a need

also exists to protect our water resources. The resource cannot

be considered inexhaustible. Water demands will continue to

increase and this continued development will modify and complicate

the water system. If we are to achieve optimum development and

management of our water resources, we must define what a water

right is, establish a state water policy, develop a State Water

Use Plan and, finally, implement a regulatory program in conformity

with this definition, policy and plan.


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I 6tNam A




A significant benefit to be gained from the adoption

of the recommended policy is that we can expect a different type

of well field development in the future. Historically, the city

and county water systems have purchased in fee simple tracts of

land for the development of well fields. From these tracts of

land the cities and counties have pumped enormous quantities

of water. It is the pumping of these enormous quantities of water

from relatively small tracts of land that has led to practically

every piece of litigation on water rights.

If the water rights are defined as recommended, we can

eliminate the necessity of purchasing the fee simple title for

well field development. All the city or county will have to

purchase is the water rights to the property. This will leave

the landowner with the ability to utilize the overlying land

for any number of purposes. There are a great many land uses that

are compatible with the development of a well field. Additionally,

this should serve to decrease the cost of land acquisition for

water supply purposes.


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